The News, the Supreme Court, the Marriage Decision and Family History

Since writing my short response about the recently decided case of Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al. No. 14-556, Decided June 26, 2015, I have read several commentaries and news accounts about the case. (Note: the official citation to this case is still pending its publication in the U. S. Supreme Court Reports and will ultimately appear as 576 U.S. ____ (2015). Also, the case is a consolidation of four cases, 14-556, 14-562, 14-571, and 14-574. It is the customary to name the case after the action with the oldest filing date, hence this case is called Obergefell). I fully realize that this is primarily a family history blog, but as a former trial attorney with some experience in constitutional law and as an active member of The Church of Jesus Christ of Latter-day Saints, I hope that you will permit me to make a few more comments about the decision of the Supreme Court in this case. Please note, that I am not writing in any capacity as an official representative of the Church. All my opinions are my own. I am also completely retired from the active practice of law. But this does not mean my opinions are in any way retired.

My first comment is directed at those who accuse the United States Supreme Court of being an oligarchy. The Supreme Court does not rule the United States. By definition it cannot be an oligarchy. Simply because you or I disagree with a ruling made by the Supreme Court (or any other court) does not change the basic nature and function of our court system. We must always remember that our judges are appointed or elected by our legal processes. Ultimately, responsibility for their actions lies with those whom we ourselves have elected to offices within our government. Those who summarily dismiss the actions and the decisions of the Supreme Court of the United States or any other court need to study their history and the organization of our court system more carefully. On many occasions, when the Supreme Court has made controversial decisions, the U.S. Congress has passed laws clarifying or changing the rulings of the Court.

We must always look to our history to understand what is going on at the present time. Back in 1937, President Franklin Roosevelt was riding a wave of popularity and found that the biggest obstacles to his sweeping social reform legislation were the decisions of the Supreme Court holding, in case after case, that the laws were defectively unconstitutional. Here is a brief summary of what occurred from the University of California, Davis History Project in an article entitled "FDR and CourtPacking (University)" by Roland Marchand.

Roosevelt presented his solution to Congress on February 5, 1937, in the form of a bill to reorganize the judiciary. The bill was not limited to the Supreme Court and it was couched in terms of "efficiency," but the important clause was one that stipulated that for every justice over seventy years old who did not retire, the President could enlarge the Court, to a total of fifteen, by appointing a second justice. Since the conservative justices were all over seventy, the bill would put Roosevelt in a position to appoint six new liberal judges unless the conservatives resigned. Much to Roosevelt's surprise, there was immediate and vocal opposition to the bill. “The History Project.” The History Project at UC Davis. Accessed July 1, 2015. http://historyproject.ucdavis.edu/.

Every President of the United States since Roosevelt has faced the same challenge and tried to influence the Supreme Court through carefully (from their perspective) choosing the new justices as they become vacant through death or retirement. Attempts to influence or control the Supreme Court have been an issue since the ratification of the U.S. Constitution in 1787. You might want to remember that it took the colonies/states two more years, until 1789, to convene the first U.S. Congress. The history of the Supreme Court is long and involved. Before you start making uninformed comments about the most recent and publicized decisions of the Court, I suggest that you read a few books on the subject. I might suggest the most recent version of a textbook I used in law school as a start:

Nowak, John E, and Ronald D Rotunda. Constitutional Law. St. Paul, MN: Thomson/West, 2010.

My next comment is a reminder that the present marriage case, only came to the attention of the Supreme Court after 37 states (including my own present residence in the state of Utah) and the District of Columbia had already legalized same-sex marriage. The fact that the Supreme Court was asked to decide the issue should not be much of a surprise and given the fact that 37 of the states had already legalized the process, the decision is not much of a surprise either. Now, before you start arguing about the process of legalization, remember that the court rulings were accepted by the various legislatures and administrative agencies of the various states.

Next is a comment on the relationship between the present ruling of the Supreme Court on marriage and its relationship to religious practices. In an article in the student newspaper for Brigham Young University, The Universe, on June 30, 2015, a BYU law professor, Lynne Wardle, is quoted as saying the following:

"A host of religious liberty issues are going to erupt." Wardle said. "There will be an undermine of religious issues of individuals." He referenced several previous rulings regarding bakers and florists who were sued for refusing to provide services for gay and lesbian weddings. "The gays are going to force religious individuals to lose religious liberties," he said. (copied from newspaper report)

Now, I have no way to know if this is what the professor actually said, since this is a newspaper report, but the subject matter of the quote shows that there are some extremely complex legal issues involved in this current decision of the Supreme Court. It might be a good idea to remember the exact wording of the First Amendment to the United States Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

 The First Amendment is not directed at decisions of the Supreme Court. It is directed at the United States Congress. We will undoubtedly face some very disturbing issues concerning the enforcement of the current Court decision, but the focus of those possible issues will be a different set of Court decisions and laws. Before you get emotionally involved in the First Amendment issues, you might want to review what the Supreme Court has already decided. Here is a link to a list of the Supreme Court cases involving First Amendment issues. Wikipedia: List of United States Supreme Court cases involving the First Amendment. This list may not be complete, but it is a good start. Off-hand and emotional comments about this subject are not very helpful. Here is another list of cases: First Amendment Center: Supreme Court Cases.

One final comment. I would suggest that any reaction you might have to the decisions of the Supreme Court or any other court should not be based on commentary in the news, including speculation about the relationship of the present marriage decision to possible First Amendment issues. There is no doubt that this decision and its social and religious ramifications will be a topic of discussion as well as litigation in the future. I suggest that those who are members of the Church listen to and carefully consider the official announcements of the Church on LDS.org. Here is a quote from a comment on LDS.org directed at the Young Women, entitled, "Why is it important to listen to and follow the living prophets?"

We sustain the members of the First Presidency and the Quorum of the Twelve Apostles as prophets, seers, and revelators. Their teachings reflect the will of the Lord. They give us instruction, warnings, and counsel from the Lord for our day. We are blessed with safety, peace, and spiritual strength when we listen to and obey their counsel.

It is a good time to remember this counsel.